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Fair Work Act and OHS

On 1 July 2009, the Australian industrial relations (IR) climate changed with the introduction of the Fair Work Act. Regardless of the politics of the new Act’s origin, this legislation changes the way that working conditions for Australians are negotiated and set.

The Fair Work Act has no relevance to occupational health and safety, so why mention this on SafetyAtWorkBlog?

The new IR legislation should reduce the conflict that has been existent in workplace negotiations. The new industrial climate is consultative and forward-looking. In fact, the government is hoping that, to some extent, this legislation reboots industrial relations (to borrow a phrase from current international diplomacy).

It is in this IR climate, and consultative structure, that OHS issues will need to be discussed and negotiated in the future.

In a webinar conducted by SmartCompany and Gadens Lawyers on 9 July 2009, the openness of the information/consultative processes was stressed by panellist, Kathryn Dent.

This positive management climate reflected that presented in an earlier seminar conducted by Douglas Workplace Lawyers. Fair Work Australia Commissioner Lewin and lawyer, Andrew Douglas, spoke about how the new IR system is more inclusive than the previous WorkChoices systems. However, they also admitted that the Fair Work Act has nebulous support documentation and information.

The level of prescription is much less than previous. This allows for less restrictive negotiation but it also means that clarity may rely on determinations made by the tribunal. Commissioner Lewin concurred with Andrew Douglas’ point that the operations of the Fair Work system will require several years of “settling in” and some adjustments depending on determinations.

When raising OHS issues for the next year or so in Australia, employees and professionals need to be reminded that many of the managers and employers with whom they are dealing may well be feeling swamped by new industrial relations processes. This distraction may be understandable but OHS obligations remain the same regardless of other management issues.

OHS may seem to be more messy during this period as the IR overlaps with the “safe systems of work”. Unless IR is already part of the responsibilities of an OHS professional, the advice is to keep away from the details of the Fair Work Act. However it is recommended that at least one seminar on the Fair Work Act be attended so that the “tone” of the new legislation is understood. More important is how the Act is to be applied within the workplaces of one’s clients or employer.

Safety management systems will need to be tweaked to fit with the new consultative aims and processes. Of course, they will need to be tweaked again once the harmonised national OHS legislation comes begins in 2010. Don’t expect stability in Australian workplaces for the next couple of years.

Kevin Jones

Environmental tobacco smoke, workplace stress – podcast 2006

In 2006, one of the earliest editions of the SafetyAtWork podcast featured several speakers on issues that remain topical. The podcast is available for download

Anne Mainsbridge, currently a Solicitor with the Public Interest Advocacy Centre talks about her report on environmental tobacco smoke.

This is followed by Associate Professor Tony LaMontagne of the University of Melbourne talking about a systematic approach to managing workplace stress. This was a report that was published by the Victorian Health Department and, as such, slipped by many OHS professionals. The report is now available for download

The audio production is rough for such an early podcast, and I apologise, but I think you will find the content of interest.

Kevin Jones

Workplace safety insurance – podcast

Recently I interviewed workplace lawyer, Andrew Douglas, pictured right, while researching an article concerning the application of statutory liability insurance policies to workplace safety management.

SafetyAtWorkBlog is pleased to provide our latest podcast which includes my interview with Andrew. The interview provides simpler information on the statutory liability issue but also, and perhaps more importantly, we discuss how business perceives the role of insurance in managing safety and risk. We also contemplate the impact of such insurance on OHS regulators’ enforcement policies.

Kevin Jones

Swine Flu and business continuity – video

On the evening of 2 June 2009, the ABC TV show “Lateline Business” ran a short item on the business continuity issues associated with Australia’s swine flu outbreak. Not much that was said was new but it proposed an interesting scenario for those people who manage aged care facilities where a potentially virulent illness could harm residents who it may be difficult to isolate or quarantine.

Michael Tooma of Australian law firm, Deacons, spoke briefly to remind viewers that health and safety were important legislative obligations that relate to illnesses, such as swine flu. Interestingly he provided a rule-of-thumb scenario on business continuity. He asked whether a business could continue to operate with 20% less staff, a 20% reduction in logistics services and 20% less customers, if the swine flu realises its potential.

Most of the speakers spoke from the current position that Australia is suffering from a “mild” case of this virus. The story would be considerably different if Australia suffered its first swine-flu fatality, as have other nations. One death and the terminology will change.

A video of the segment is available to view online.

Kevin Jones

Legal opinion on Australia’s model OHS laws

The comments on the Australian Government’s response to the report into Australia’s model OHS laws have been pretty muted. There were the obligatory compliments from those in favour and the obligatory criticisms from those against but both types of response were in the immediate aftermath of the Workplace Relations Ministers’ Council meeting in mid-May 2009.

Going from the institutional and media quiet, there must be few changes that are expected to have any great impact. Law firm Blake Dawson released their take on the government’s response. Here is their advice to employers – pretty much “wait and see”:

Lessons for employers

The decisions made by the WRMC on the proposed national model OHS Act will bring changes to virtually all areas of OHS in all Australian jurisdictions.

All employers and other duty holders should carefully review the model OHS Act upon its release and consider whether changes need to be made in advance of the laws being enacted.

Particular areas of focus are likely to be:

ensuring all duty holders have a clear understanding of the nature and scope oftheir duties and obligations;

ensuring that officers of corporations are taking proactive steps to promote health and safety;

in respect of some Australian jurisdictions (eg NSW) preparation for the introduction of health and safety representatives and the role that HSRs may play in an organisation;

thorough preparation for regulator investigations.

It is strongly recommended that their full “alert” be read for interest.

Kevin Jones

Presenteeism and swine flu

Craig Donaldson interviewed Joydeep Hor, managing partner of Australian law firm Harmers on employment issues related to the swine flu outbreak. Joydeep rightly points out that HR and OHS processes should not differentiate between swine flu and other workplace illnesses. Hor briefly discusses the employers duty of care and how to question one’s traditional approaches to the “sniffles” at work.

Of course there is also the much under-enforced obligation of the employee not to put their work colleagues at risk – the major argument against presenteeism.

Kevin Jones

Working longer means staying healthy longer

It is rare for anything of great relevance to occupational health and safety to come from the annual budget statement of the Australian government. There is nothing directly relevant from the statement issued earlier this week except for the lifting of the retirement age to 67 in 2023.

Compulsory retirement age does not mean that people stop working. If that was the case, farming and the Courts would be very different organisations. The retirement age has more to do with financial independence or the pension eligibility than anything else but the government’s decision has focused the media and commentators on the fact that people will be working beyond traditional retirement age.

The announcement this week also supported the reality that has been increasing for many people for over a year now that the level of retirement income has plummeted because of the global economic recession. People have a growing financial need to work, not simply a desire.

This will change the way that worker health will be managed by companies and by the individual. Watch for even more interest in “the best companies to work for” campaigns. In fact it should not be long before someone starts marketing on the theme of “is your health up to working into your seventies?”

This morning a package of interesting statistics were presented to a breakfast seminar held by Douglas Workplace & Litigation Lawyers. One of the regular speakers, Ira Galushkin, provided the following Australian statistics

High risk employees (5+ Risks) are at work but not productive 32.7% of the time compared to low risk employees (0-2 Risks) who are not productive 14.5% of the time.

The productivity difference between health and unhealthy employees is therefore 18.2% or 45 days per annum.

High risk employees average 5.1 hours/month absence versus 2.4 hours/month for low risk employees. This amounts to 32.4 hours (over 4 days) days per annum.

Healthy employees average 1-2 sick days per annum versus 18 days for those in the lowest health and wellbeing category.

The unhealthiest employees are productive for only about 49 hours out of each month compared to around 140 hours/month for the most healthy.

Poor health can account for an average 5% loss in productivity across the entire Australian workforce with the unhealthiest group reporting a 13% drop in productivity. About half [of] this is related to chronic conditions such as headaches, hay fever and neck/back pain,whilst half can be accounted for by lifestyle factors such as inactivity, smoking, obesity etc

All of this information shows the importance of workers maintaining their own fitness in order to live longer, but also to be able to present a case, if necessary, about their own productivity levels and how they have been saving their employer big dollars.

If we need to be able to work till older than previously, we will want to stay in a job we enjoy and that values us. Some longterm health planning may be required by all of us.

Kevin Jones

Category: lawyers

Fair Work Act and OHS

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Environmental tobacco smoke, workplace stress – podcast 2006

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Workplace safety insurance – podcast

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Swine Flu and business continuity – video

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Legal opinion on Australia’s model OHS laws

Lessons for employers

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Presenteeism and swine flu

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Working longer means staying healthy longer

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Lessons for employers

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